The Supreme Court & Obamacare

[CountDeMoney]

When's the ruling expected? A matter of days? Months? Tomorrow?

I think it's expected by the end of this Court term.  So June-ish.

More like July.

[DGuller]

It takes them that long to count to five and four?

[frunk]

It was nice to read this thread, lots of good information and none of the usual bullshit and silliness that are so common here to ruin it .  I learned quite a bit.

On this subject I think this is the least partisan 'yoo-bah' thread on the internet

I think most of the conservatives here are smart enough to realize that if this does get struck down then there's really no plan for fixing anything in the health care system, and most of the liberals here are smart enough to have grave reservations about the stupider elements of the law.

[CountDeMoney]

It takes them that long to count to five and four?

Nah, they vote practically immediately; the written decision doesn't come out until June or July.

[alfred russel]

It takes them that long to count to five and four?

Nah, they vote practically immediately; the written decision doesn't come out until June or July.

Yeah, they vote 5-4 now, and then spend the next few months thinking of the reasons.

[The Minsky Moment]

I don't see how the things you listed qualify as inactivity Shelf.

edit: Except vaccinations.  Which I think fall under state law but that's a guess.  Anyone know?

I don't, but another case occurred to me which is Wickard v. Fillburn, where the Court upheld a regulation that applied a penalty to growing excess wheat (over quota amounts) even though the farmer in question didn't seek to sell the wheat, but use it for consumption on the farm.  The Court upheld the regulation on the grounds that wheat consumed on the farm could nonetheless ultiamtely have a causal impact on the larger market for wheat (by reducing the demand that otherwise would exist in the absence of that wheat).

[Sheilbh]

I think Yi's right. After all in the first two, the person would be actively making harassing calls and the store owner would be actively discriminating against minorities.

The first one isn't making the calls, they're allowing their phone to be used for the call to be made.  It doesn't have to be actively granting permission, just failing to stop the calls being made which is criminal.  That's precisely the novelty Kennedy points out.  Generally you're under no duty to stop a blind man walking off a cliff, assuming the principles are the same in criminal law you generally can't be prosecuted for not doing something.

There are exceptions though which do require activity - such as the telephone law.

[garbon]

I think Yi's right. After all in the first two, the person would be actively making harassing calls and the store owner would be actively discriminating against minorities.

The first one isn't making the calls, they're allowing their phone to be used for the call to be made.  It doesn't have to be actively granting permission, just failing to stop the calls being made which is criminal.  That's precisely the novelty Kennedy points out.  Generally you're under no duty to stop a blind man walking off a cliff, assuming the principles are the same in criminal law you generally can't be prosecuted for not doing something.

There are exceptions though which do require activity - such as the telephone law.

Aiding and abetting by knowingly providing access to a phone?

[Admiral Yi]

I don't, but another case occurred to me which is Wickard v. Fillburn, where the Court upheld a regulation that applied a penalty to growing excess wheat (over quota amounts) even though the farmer in question didn't seek to sell the wheat, but use it for consumption on the farm.  The Court upheld the regulation on the grounds that wheat consumed on the farm could nonetheless ultiamtely have a causal impact on the larger market for wheat (by reducing the demand that otherwise would exist in the absence of that wheat).

This one was mentioned during oral arguments.  (BTW have you read it?)  This falls in the same pattern as your motel.  Growing wheat is a commercial activity.

[MadImmortalMan]

Makes me wonder how the wheat case itself came to exist. Did they have wheat nazis going around counting farmers bales or something?   

[The Minsky Moment]

Growing wheat is a commercial activity.

Growing wheat is not any more a commercial activity in itself than my growing flowers in my backyard.  It's only a commercial activity if the wheat enters into commerce.

[Admiral Yi]

Growing wheat is not any more a commercial activity in itself than my growing flowers in my backyard.  It's only a commercial activity if the wheat enters into commerce.

And I doubt the case would have been judged the same way if McCullough had been growing wheat only for personal use.

[Sheilbh]

Aiding and abetting by knowingly providing access to a phone?

That's not the crime though.  This is a point made on the Volokh Conspiracy blog, which is run by law professors - most of them seem fairly libertarian and generally seem of the view that Obamacare's unconstitutional - and always worth reading.

One of them cites a a Federal telecom harassment statute - which has been upheld under the commerce clause - and it largely regulates sending obscene images, or harassing people over state boundaries.  But it also has a section that prohibits 'permit[ing] any telephone facility under such person's control to be used for an activity prohibited'.

That section has no intent requirement, there's no knowledge requirement (another section prohibits 'knowingly permitting') and the 'act' is not intervening to stop someone from doing something.  The crime isn't doing something but failing to stop someone else from doing something, it has no intent requirement.  That to me looks like regulating inactivity. 

I can't see the difference between not buying health insurance and not stopping someone from doing something.  I agree with MM's point on the farmer growing for personal consumption, I don't see the distinction between him not being allowed to do that and someone with a smallholding not being allowed to do it.

[garbon]

Aiding and abetting by knowingly providing access to a phone?

That's not the crime though.  This is a point made on the Volokh Conspiracy blog, which is run by law professors - most of them seem fairly libertarian and generally seem of the view that Obamacare's unconstitutional - and always worth reading.

One of them cites a a Federal telecom harassment statute - which has been upheld under the commerce clause - and it largely regulates sending obscene images, or harassing people over state boundaries.  But it also has a section that prohibits 'permit[ing] any telephone facility under such person's control to be used for an activity prohibited'.

That section has no intent requirement, there's no knowledge requirement (another section prohibits 'knowingly permitting') and the 'act' is not intervening to stop someone from doing something.  The crime isn't doing something but failing to stop someone else from doing something, it has no intent requirement.  That to me looks like regulating inactivity. 

I can't see the difference between not buying health insurance and not stopping someone from doing something.  I agree with MM's point on the farmer growing for personal consumption, I don't see the distinction between him not being allowed to do that and someone with a smallholding not being allowed to do it.

You missed the bit that the section is suboordinated too. Bold font is mine.

http://www.law.cornell.edu/uscode/text/47/223

(1) Whoever knowingly—
(A) within the United States, by means of telephone, makes (directly or by recording device) any obscene communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or
(B) permits any telephone facility under such person's control to be used for an activity prohibited by subparagraph (A),

edit: do you have a version that doesn't show the knowingly bit?

[Sheilbh]

No, sorry you're quite right (and the thing I was reading said as much).  It does require knowledge but not intent - that's another bit (' knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity').  But even so the crime is still a failure to act.  The point he makes is that if the decision not to buy health insurance is inactivity then surely the decision not to stop a person from harassing someone is also inactivity?